U.S. officials have long retaliated against employees who speak out, burying
the dangers they expose. Now, Congress wants to give whistle-blowers greater
protection -- but President Bush vows to stop it.

By James Sandler

Nov. 01, 2007 | If there is any doubt about how the Bush administration treats
government whistle-blowers, consider the case of Teresa Chambers. She was hired
in early 2002, with impeccable law enforcement credentials, to become chief
of the United States Park Police. But after Chambers raised concerns publicly
that crime was up in the nation's parks, she was rebuked by superiors and fired.
When Chambers fought to regain her job through the legal system meant to protect
whistle-blowers, government lawyers fought back, and associated her with terrorists.
Despite a multiyear legal struggle, she is still fighting for her job.

Whistle-blowers have faced hostility not only under Republican administrations.
During President Clinton's tenure, Bogdan Dzakovic, an undercover security agent
with the Federal Aviation Administration, suffered retribution for speaking
out about weak airport security -- three years before Sept. 11, 2001. Dzakovic
was passed up for promotion time and again, and today, he says, he remains consigned
to data entry duties for the Transportation Security Administration.

Every year, hundreds of federal workers sound the alarm about corruption, fraud
or dangers to public safety that are caused or overlooked -- or even covered
up -- by U.S. government agencies. These whistle-blowers are supposed to be
guaranteed protection by law from retaliation for speaking out in the public's
interest.

But a six-month investigation by the Center for Investigative Reporting, in
collaboration with Salon, has found that federal whistle-blowers almost never
receive legal protection after they take action. Instead, they often face agency
managers and White House appointees intent upon silencing them rather than addressing
the problems they raise. They are left fighting for their jobs in a special
administrative court system, little known to the American public, that is mired
in bureaucracy and vulnerable to partisan politics. The CIR/Salon investigation
reveals that the whistle-blower system -- first created by Congress decades
ago and proclaimed as a cornerstone of government transparency and accountability
-- has in reality enabled the punishment of employees who speak out. It has
had a chilling effect, dissuading others from coming forward. The investigation
examined nearly 3,600 whistle-blower cases since 1994, and included dozens of
interviews and a review of confidential court documents. Whistle-blowers lose
their cases, the investigation shows, nearly 97 percent of the time. Most limp
away from the experience with their careers, reputations and finances in tatters.

Legal experts and lawmakers say the system is badly in need of reform. In fact,
new legislation to strengthen whistle-blower protections has been moving through
Congress this year, with strong bipartisan support, and is expected to come
before the Senate this session. But in the latest setback to the system, the
Bush White House has vowed to veto the legislation, citing among its criticisms
a risk to national security.

"Whistle-blowers are treated like a skunk at a picnic, and there's no
excuse for it," Sen. Charles Grassley, the Iowa Republican, said after
being provided with details of the CIR/Salon investigation. Grassley has long
sought stronger whistle-blower protections and is backing the new legislation
toward reform. "It's whistle-blowers who can help us truly understand problems
at government agencies. They stick their necks out to speak the truth. They
don't take the easy way out."

"It's imperative that there are whistle-blower protections for civil servants
when they see something that is wrong," said Lynn Jennings, an attorney
who served during the Clinton administration as general counsel for the special
whistle-blower court, known as the Merit Systems Protection Board. "They
need to know that if they speak out they are going to be protected. Ultimately,
it is to save lives, to save money, to save the integrity of the federal government."

To be sure, some cases brought by whistle-blowers are frivolous. Recent cases
included one in which an employee sought protection after reporting missing
candy bars at a government commissary. In another case, a worker complained
about colleagues using a drinking fountain as a spittoon. One government worker
was discovered by investigators to have fabricated his entire complaint. Most
such cases, however, are weeded out of the system.

But the apparently legitimate cases -- some involving serious issues such as
aviation security or tainted meat in the U.S. food supply -- have long been
undermined by a lack of resources and case backlogs. And legal precedents created
by the Federal Circuit Court of Appeals in Washington -- the sole appeals court
that hears and interprets the law for the special whistle-blower system -- have
made it virtually impossible in recent years for whistle-blowers to win their
cases.

The beginnings of modern whistle-blower protections can be traced to the U.S.
Senate floor in April 1951, when the junior senator from California proposed
a new law, telling his fellow lawmakers that "it is essential to the security
of the nation and the very lives of the people" that employees do not become
"a parade of yes-men for administration policies." The senator was
Richard Nixon, and his proposed law eventually stalled. It might have faded
away forever, if not for the scandal that shook public confidence in the federal
government under Nixon's own administration two decades later.

In the wake of Watergate, Congress passed the Civil Service Reform Act of 1978.
It established the Office of Special Counsel, with a staff of investigators
to look into complaints of retaliation against employees who spoke out. The
new law also created the Merit Systems Protection Board, the administrative
court with a bipartisan panel of three judges, and it assigned a special federal
appeals court to interpret the law in the most complex cases.

But year after year, whistle-blowers complaining of retaliation lost their
cases. Some faced insidious tactics by their co-workers and superiors.

Joseph D. Whitson Jr. was a civilian chemist in the Air Force who spoke out
about superiors falsifying drug test results. His desk was moved to a room in
the basement and his job duties stripped.

Vernie Gee Sr. was an agricultural inspector who sounded the alarm about tainted
meat in the U.S. food supply and inspectors taking bribes from slaughterhouses.
Gee was beaten up by a plant worker during an inspection -- and then reprimanded
by superiors for fighting.

George Randall Taylor, a chief of police at a Navy base in Bermuda, exposed
coverups of rapes on the base. He was then forced into a psychiatric hospital.

Before Teresa Chambers was fired from the Park Police, she found used condoms
on her car, and someone pepper-sprayed her office door.

"One of the great tricks in whistle-blowing is to get rid of someone for
a reason that doesn't seem like it was for whistle-blowing," said Fred
Alford, a professor of government at the University of Maryland. "You do
all the things you can to get someone to quit, to get them enraged, to get them
to act out. Then you can fire them."

Government managers and attorneys almost always argue that measures taken against
whistle-blowers were justified because of bad behavior or poor performance by
the employee.

"It is usually not that hard for [agencies] to build up a case against
somebody if they want to," said Elaine Kaplan, who headed the Office of
Special Counsel under President Clinton. "They start looking at your e-mails,
they start nitpicking you … It is difficult to prove whistle-blower retaliation."

Details of Chambers' case reflect that struggle.

Prior to becoming chief of the Park Police, Chambers had a distinguished 28-year
career in law enforcement. She was a Republican, was eager to serve the nation
in the wake of the 9/11 terrorist attacks, and would be the first woman to lead
the force. But her pedigree apparently would no longer matter once her public
comments created political embarrassment for the Bush administration.

After 9/11, the administration feared terrorist attacks on high-profile U.S.
landmarks, and ordered Chambers to double the number of officers standing guard
at icons like the Statue of Liberty and those on the National Mall in Washington.
But the Park Police force already faced staffing shortages, and Chambers was
forced to pull officers who were patrolling other national parks, leaving those
areas vulnerable. Drug dealers soon moved in, and rapes more than tripled. In
August 2002, when one of Chambers' patrolmen was handling a traffic accident
with insufficient backup, he was run over and killed.

In the fall of 2003, when a Washington Post reporter contacted Chambers for
a story about the growing peril in the parks, she responded candidly. The Park
Police, she told the Post, needed twice as many officers and millions of dollars
to cover overtime expenses. She said officers had been working grueling 12-hour
shifts, and department morale was plummeting. "My greatest fear is that
harm or death will come to a visitor or employee at one of our parks,"
she said.

Retaliation against her began almost immediately. Chambers' supervisor, Donald
W. Murphy, then the deputy director of the National Park Service, ordered her
in an e-mail to never again "reference the President's '05 budget under
any circumstances" and summoned her to his office. In court documents later
filed by Chambers she described how armed federal agents suddenly appeared and
surrounded her in Murphy's reception area, and took away her gun and badge.
She was then paraded in front of media when escorted to another building to
collect her belongings.

During the course of her case, Bush officials and attorneys attacked Chambers
from multiple angles, documents show. One high-ranking official at the Interior
Department, which oversees the Park Police, said Chambers was no longer "trustworthy"
and that she "potentially endangered large numbers of citizens" by
speaking to the media. Murphy, her former boss, said Chambers had been "communicating
to the criminal elements," signaling to them that national parks had become
their "free territory to exploit." A lawyer for the Bush administration
asserted that Chambers had made reconnaissance operations easier for "America's
enemies in the world."

In a recent interview, Chambers questioned whether raising concerns about an
understaffed force angered Bush officials who were talking up policies for securing
the U.S. homeland. "Was it just a bad day at the White House where I said
we needed more officers, when somebody else was standing at a podium saying
we've never been safer?" asked Chambers, who now teaches part-time at Johns
Hopkins University and maintains a Web site documenting her case. "I don't
know."

One advocacy group that assists whistle-blowers, the Government Accountability
Project in Washington, has scrutinized past rulings to determine how whistle-blowers
fare. GAP's pioneering work showed that whistle-blowers seldom win. But until
now, no comprehensive study has been done on whistle-blower cases. The Merit
Systems Protection Board does not specifically keep track of cases, but using
records obtained through the Freedom of Information Act, the CIR/Salon investigation
reviewed 3,561 whistle-blower cases filed since 1994, when the Whistleblower
Protection Act was last revised by Congress. The cases often traversed a costly
and drawn-out series of legal steps prior to a decision. During the Clinton
administration, in cases from 1994 to 2000, whistle-blowers won only 3.5 percent
of the time. During President Bush's tenure, from 2001 through June 2007, 3.3
percent of whistle-blowers won. Most whistle-blowers spent several years fighting
in court.

"Whistle-blowers are overly confident in the law, but in most cases there
is no recourse," said University of Maryland's Alford, who has studied
the issue. "We have this idea of whistle-blowers from television -- from
'60 Minutes,' from Time magazine. But most whistle-blowers live and die in anonymity."

"If you are looking at that record and advising [a whistle-blower], I
would suggest seeking out a different venue," said Robert G. Vaughn, a
law professor at American University who has written extensively about the Merit
Systems Protection Board.

Beth Slavet, a former judge on the Merit Systems Protection Board during the
Clinton and Bush administrations, said of the court's record: "It has a
chilling effect. Why would you bring a case that you don't think you can win?"

The system's track record has left some whistle-blowers wondering whether their
cases were tainted by partisan politics. In the 2003 case of Craig F. Johns,
a former special agent for the Department of Veterans Affairs, confidential
court documents obtained by CIR and Salon reveal such meddling -- by a Republican
judge on the court itself.

Johns' case, which alleged forged training records and anti-gay harassment
inside his agency, had crawled through the whistle-blower courts for seven years.
In 2003, his case reached its final appeal at the Merit Systems Protection Board.
At the time there was a vacancy on the bipartisan three-judge court. Johns'
case was being heard by a Democrat and a Republican -- two judges with sharply
different interpretations of the whistle-blower law. Beth Slavet, the Democrat,
was a former staffer for Sen. Ted Kennedy and had an extensive career practicing
labor law. Her Republican colleague, Susanne T. Marshall, had never been an
attorney or even graduated college, but had been appointed to the court after
a long career as a Republican staffer on the Senate committee for governmental
affairs.

The two judges had in fact battled for more than three years over the Johns
case, the court documents show, clashing over, among other things, how to address
Johns' claims of anti-homosexual harassment. Discrimination laws do not cover
sexual orientation, but Slavet felt Johns' case underscored such a need and
drafted a decision that would grant Johns' case a new hearing. But Marshall
disagreed, and she used a procedural tactic to stall the case until an incoming
Bush-appointed judge arrived to replace Slavet, whose term was almost over.

Slavet wrote a scathing memorandum to Marshall in response: "It is fundamentally
unfair to the parties and destructive of the process to hold up these cases
pending my departure and Mr. McPhie's confirmation," Slavet wrote in the
memo dated Feb. 25, 2003, referring to the incoming Bush appointee, Neil McPhie.
Soon after, McPhie joined the court and Slavet's term ended. Marshall and McPhie
decided the Johns case that August: "Corrective Action Denied."

It was not the only case that Marshall stalled, documents show. There was the
case of Lori A. Sutton, a Department of Justice secretary who alleged retaliation
after filing an equal opportunity complaint; and the case of Valerie E. Johnson,
a Department of Defense commissary worker who alleged retaliation after exposing
the reselling of food items that had been picked at by rats. Marshall and McPhie
also ruled against these whistle-blowers.

Marshall is no longer with the court and could not be reached for comment.
But the current general counsel of the Merit Systems Protection Board, Chad
Bungard, disputed that Marshall's stalling of whistle-blower cases should be
chalked up to partisan politics. "This could be totally innocuous,"
Bungard said. "I can't speculate on what Marshall's intent was."

Craig Johns has since left government work and opened a rescue ranch for injured
animals in Texas, naming it the Ranch of Last Resort. "It's very disturbing,
to learn about this political interference," he said recently. "This
is why I prefer the company of animals to people."

Johns' case, like many others, never made it to the Federal Circuit Court in
Washington, the only court that can preside over appeals of whistle-blower cases
beyond the Merit Systems Protection Board. Through a series of precedent-setting
rulings -- which are binding for the entire whistle-blower legal system -- the
judges on the Federal Circuit Court have interpreted the law in recent years
to the point where, as one investigator from the Office of Special Counsel put
it, whistle-blowers must "utter magic words" to get protection.

Whistle-blowers are often employees who, during the course of their jobs, notice
violations of rules or laws; before going public, they may casually mention
the wrongdoing to a boss, or write a memo expressing the need to address a danger
to public safety. Teresa Chambers is one example of a person who first raised
concerns within her department, to no avail. But legal precedents created by
the Federal Circuit Court have rigged the odds heavily against such employees.

One ruling determined that employees will not be protected if the nature of
what they disclose is "debatable" by others. Another precedent says
whistle-blowers won't be protected if the coverup they disclose is common knowledge
in the office. Another precedent strips protections for whistle-blowers who
complain only to their direct boss but to no one higher up the chain. Perhaps
the most notorious precedent, known as "Huffman," says whistle-blowers
will not be protected if it is their job to scrutinize safety issues or mismanagement,
and they speak out about a coverup -- like meat inspectors who discover a coverup
of tainted beef in the food supply, or law enforcement officials who speak out
about dangers to public safety.

In other words, these legal precedents have made the law more beholden to murky
workplace protocols than to the substance of the allegations, even when those
allegations concern serious public safety issues and are proven to be true.

"The problem is that no whistle-blower knows a damn thing about whistle-blowing
before they do it. You can't go back and repackage the disclosure to meet the
requirements of the law," said a senior Pentagon official who specializes
in employment law. The official spoke on the condition of anonymity, fearing
that he would not be protected from retaliation if he were openly critical of
whistle-blower protections. "Never have your name in print," he said.

Another government lawyer, who insisted on anonymity for the same reason, characterized
the Federal Circuit Court's view of whistle-blowers as juvenile. "No one
likes a tattletale," he said. "It's that simple."

The Federal Circuit Court's longest sitting jurist, Haldane Robert Mayer, was
appointed by Ronald Reagan. Prior to his appointment, Mayer had been the acting
U.S. special counsel -- the chief whistle-blower investigator. But Mayer resigned
from that position in 1982 after the Office of Special Counsel was accused of
holding seminars for political appointees and agency managers -- to teach them
how to fire whistle-blowers effectively within the confines of the law. The
scandal led Congress to strengthen the whistle-blower law, but it did not stop
Reagan from appointing Mayer to the bench.

"Judge Mayer is one of the most significant people in the legal system
to translate the whistle-blower law passed in response to his own [alleged]
abuses of power," said Tom Devine, legal director for the Government Accountability
Project.

Judge Mayer did not respond to an interview request.

In fact, many whistle-blower cases never even make it to the court. They first
go to the U.S. Office of Special Counsel, the agency charged with investigating
whistle-blower complaints. But the agency has long been considered a failure,
due to a chronic backlog of cases, lack of resources and poor leadership. Year
after year, the special counsel attempts to justify the existence of the agency
by publicizing a handful of whistle-blower cases. "You make examples of
high-level and mid-level officials to let them know that they are not going
to get away with it," explained Scott Bloch, the current special counsel,
during an interview in September.

But in reality, only 5 percent of employees said they were satisfied with the
treatment their case received from the Office of Special Counsel, according
to an agency survey released last year. Whistle-blowers find themselves waiting
in line behind hundreds of other employees who file complaints each year.

Elaine Kaplan, the Clinton-era special counsel, left office with more than
1,000 cases backlogged. "We received a tremendous amount of complaints
there," she said. "To tell you the truth, we were starting to move
cases more quickly toward the end, but no one wants their case to move quickly
to a bad conclusion."

Since Bloch's appointment by President Bush in 2003, the office has been fighting
critics from both political parties, going round and round over allegations
of everything from purging backlogged cases to discriminating against gay whistle-blowers.
Bloch himself has for two years been under investigation for retaliating against
his own employees.

"People have the right to file complaints if they want to and lawyers
can say anything they want," Bloch said when asked about the whistle-blower
complaint against him. "But it's all fiction -- all the stuff is made up!"

The new whistle-blower law making its way through Congress, called the Whistleblower
Protection Enhancement Act of 2007, is no panacea. But crucially, say its backers,
it would allow whistle-blowers to appeal their cases in other U.S. circuit courts,
whose judges may have a different interpretation of the law than those on the
Federal Circuit Court. And prior to that stage, if the Merit Systems Protections
Board didn't act on a case in a timely manner, whistle-blowers would be able
to get a jury trial at a federal district court. Moreover, the legislation would
seek to include whistle-blowers in the national security realm, instead of having
to rely on more secretive internal procedures at the FBI or other law enforcement
and intelligence agencies for recourse.

"These changes would help whistle-blowers appeal negative decisions and
hopefully increase the likelihood their complaints of retaliation would be heard,"
said Sen. Grassley, who is co-sponsoring the legislation.

Briefed on the results of the CIR/Salon investigation, Democratic Sen. Daniel
Akaka of Hawaii, who introduced the legislation, said: "What these statistics
show is a real need to strengthen protections for federal whistle-blowers and
close loopholes in the law created by judicial decisions that are inconsistent
with congressional intent. It is important for our laws to protect the rights
of these individuals who come forward with legitimate claims."

But the Bush administration has vigorously opposed stronger whistle-blower
protections. In a confidential e-mail from 2006, obtained by CIR and Salon,
the White House registered strong objections to a congressional committee that
was reviewing a similar law to protect whistle-blowers drawn up last year, saying
the "excessively overbroad definition of whistleblowing ... forbids using
any common sense." And President Bush has said he will veto the new legislation
moving through Congress, saying in a two-page Statement of Administration Policy
that the new law would "increase the number of frivolous complaints and
waste resources" and could "compromise national security."

Sean Kevelighan, a spokesman for the Bush administration, declined to elaborate
on the administration's position. "There is a policy that we let the Statements
of Administration Policies speak for themselves," said Kevelighan.

But for the thousands of federal employees who have descended into the bewildering
world of whistle-blowing, there is only deep frustration or bitter resolve.

"My only regret is the stress that it placed on my family, my wife, myself,"
said Craig F. Johns, the Veterans Affairs special agent whose appeal was blocked
by Marshall, the Republican judge. "I'm still suffering the economic and
psychological consequences, but I will never regret speaking the truth."

"I grew up believing that federal service was an honorable profession,"
said Bogdan Dzakovic, the former undercover FAA investigator, who remains a
federal employee, unhappily waiting for his pension. "I realized that [blowing
the whistle about security problems] was a totally pointless exercise."

Teresa Chambers, the former Park Police chief, is still trying to appeal her
case to the Federal Circuit Court, nearly four years after her firing. "Growing
up in municipal policing, it was the expectation that we would be candid with
the community that we served," Chambers said. "I was aghast to find
out that [in the federal workforce] candor was not only not expected, it was
in this case forbidden."

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